Neelam vs Ashok Kumar

Barin Ghosh, C.J.—A divorce suit is pending inter se the parties. While the divorce suit was pending, an application was filed by the husband under the Guardians and Wards Act seeking custody of the minor girl born out of the wedlock and, on that, an order has been passed directing custody of the minor girl to the applicant (husband). The fact remains, when a divorce suit is pending in Court between a Hindu couple, Section 26 of the Hindu Marriage Act, 1955 gives the Court authority to direct custody of the minor children to be given to either of the spouses. In such circumstances, an application for custody made under the Guardians and Wards Act was not entertainable. Even assuming that the same could be treated as an application made under the Hindu Marriage Act, 1955, since Section 26 thereof mandates upon the Court to direct custody consistently with the wishes of the children, and that having not been done in the instant case, the order under appeal is not sustainable. The same is quashed. The application made under the Guardians and Wards Act is declared as not entertainable. This order, however, shall not prevent the respondent-father of the minor child to apply for custody u/s 26 of the Hindu Marriage Act, 1955.

The present Appeal, accordingly, stands disposed of.